This сause involves issues presented by American Oil Company, plaintiff, on its cross-appeal taken at the time the defendants appealed from a summary judgment in favor of plaintiff, holding portions of I.C. § 49-1201 (g)2, contrary to and in violation of provisions of the Constitution of the United States. (See: American Oil Company v. Neill,
The American Oil Company, hereinafter referred to as plaintiff, contends that it is ■entitled to interest оn the sums paid to the defendant tax collectors under the statute in question, is entitled to all its costs in the lower court, this court, and the Supreme •Court of the United States, and further that judgment should be entered against the defendants personally. This opinion will discuss each of these contentions separately.
1. Issue of Costs.
Plaintiff claims the trial court erred in deciding it was not entitled to costs in the lower court. By motion in this сourt plaintiff claims it is entitled to costs incurred in the appeal to the Supreme Court of the United -States and its costs incurred in this court.
In support of these contentions plaintiff refers to I.C. § 12-102, and I.R.C.P. 54(d), 'and аs authority for award of costs incurred in the Supreme Court of the United States plaintiff cites the case of Chicago, M. & St. P. Ry. Co. v. Public Utilities Commission,
In the Chicago, etc., Ry. Co., case (supra) this court held that the railroad cоmpany was entitled to judgment for costs'taxed ■in the Supreme Court of the United States, but not to their costs in this court; The rationale for this ruling was that the Public Utilities Commission was a party to the action and henсe the state was a party, there being no statutory authority -for award of costs against the state, the costs incurred in this court could not be allowed. There is no question that under the holding of the Chicago, etc., Ry. Co., ease, plaintiff is entitled to its costs incurred.on the appeal to the Supreme Court of the United States.
As to whether plaintiff is entitled to costs in the lower court and costs incurrеd in this court another question is presented. As hereinafter pointed out, it is the -determination of this court that the defendants in this cause are not subject to a personal judgment against them. • This determinatiоn immediately presents the question raised in the Chicago, etc., Ry. Co. case, *336 whether the state is in fact a' party to this litigation and if a party, whether costs may be taxed against it. The defendants arе involved in this action by reason of their capacity as the tax collector or acting tax collector of this state, and this litigation involved the question whether the state is entitled to moneys it claimed under the provisions of I.C. § 49-1201 (g) 2. The State of Idaho is as much involved in this litigation as it was in the case of Chicago, etc., Ry. Co., (supra), and it is the determination here that while not actually named, the state itself was a party to this litigation.
The defendants contend that costs incurred in the lower court and this court cannot be awarded because there is no statutory authority therefor. The state alsо relies upon the Chicago, etc., Ry. Co., case (supra). In the instant case there is a different situation than in the Chicago, etc., Ry. Co., case. This cause involved the legality or illegality of a tax thе state claimed was due it from plaintiff’s predecessor, and not an order of the public utilities commission pertaining to tariffs and rates on lots, as the Chicago, etc., Ry. Co., case. Statutory provisions material here are: ■
■I.C. § 12-102:
“Costs are allowed of course to plaintiff upon a judgment in his favor in the following cases:
íí # * *
“5. In an action which involves * * * the legality of any tax, impost, assessment, toll or muniсipal fine.”
I.C. §' 12-114:
“Whenever costs are awarded to a party by an appellate court,' if he claims such costs he must tax the same before the clerk of the Supreme Court, subject to exсeption and review by the Supreme Court or the judges thereof, within such time and subject to such regulations as the Supreme Court shall by rule direct, and the same when taxed shall be certified by the clerk of thе Supreme Court to the clerk of the court from which the appeal was taken, to be there entered as a judgment and to be enforced by execution as in the case of other judgments.”
I.C. § 12-118:
“When the state is a party and costs are awarded against it, they must be paid out of the state treasury, and the state auditor shall draw his warrant therefor on the general fund.”
Thus there is statutory authority for allowance of costs in this cause. The legislature by enactment of I.C. § 12-102, sub. 5, has authorized imposition of costs in favor of any prevailing plaintiff in actions involving “The legality of any tax”. Inasmuch as such an action could only be *337 brought against the state, county, municipality or other taxing authority, or the agents thereof, for this statute to be meaningful, of necessity it must be considered as authorization for imposition of costs against the state, county, or other taxing authority in those actions involving “the legality of any tax, impost, assessment, toll or municipal fine”. When the conditions of I.C. § 12-102, sub. 5, are complied with, costs are allowable not only in the lower court, but also in this court, and I.C. § 12-118 provides the method of payment thereof.
Plaintiff asserted that it was entitled to certain specific items of costs in the lower сourt. While the trial court disallowed all costs claimed, the reason for such dis-allowance is not shown, and the cause must be remanded to that court to determine which items of cost the plaintiff is еntitled to recover.
Defendants have not questioned any specific items of costs as contained in plaintiff’s amended cost bill filed in this court; thus those items of cost attributable to this appeal, including the costs allowed by the Supreme Court of the United States, are allowed.
2. Personal liability of the defendants.
Plaintiff asserts that it is entitled to judgment against the defendants herein imposing a personal and individual liability upon them in this actiоn in addition to their liability in their official capacities-As authority for this contention plaintiff refers to the case of Smith v. Costello,
The case of Smith v. Costello (supra) was decided by this court in November, 1955. In 1959 the legislature enacted the following provisions (S.L.1959, Ch. 5 § 1, I.C. § 6-611):
“Immunity from liability. — No public оfficer may be held either criminally or civilly liable for actions performed under any statute if such statute is subsequently declared by judicial determination to be unconstitutional or otherwise non-existent оr void, if such actions would have been legal had each statute not been held by judicial determination to be unconstitutional or otherwise non-existent or void.” *338 This section of the code is controlling here. The trial court did not err in refusing to impose personal liability upon the defendants.
3. Interest on amounts paid.
Plaintiff claims it is entitled to interest on the sums it paid to defendant tax collectors as a tax, which the United Statеs Supreme Court later held to be in violation of the Due Process Clause. Plaintiff argues that had it not paid the tax when demanded it would have had to pay a 15% penalty plus 8% per annum; that under generаl Idaho statutory provisions (I.C. § 27-1904 sub. 5), allowing interest, it is entitled to 6% of the sum so paid.
There is a decided split of authority as to whether, in the absence of specific statutory provisions therefor, a taxрayer is entitled to interest on taxes illegally assessed or charged. Annot.:
On the other hand, illustrative of authorities denying interest in such circumstances are: Schlesinger v. State,
The reasoning of the cases which deny recovery of interest on tax refund seems more logical. The state is liable for interest only when it consents thereto by statute or contract. Peoplе v. Union Oil Co.,
Although certain statutes of this state authorize payment of interest on tax refunds: (i. e., I.C. § 49-1238 (e) on refunds under special fuel tax; I.C. § 63-3073 on income tax refunds; I.C. § 63-2202, refunds of sums collected by counties for taxes), no statute has been called to the attention Of this court authorizing payment of interest on the funds'involved herein; plaintiff. in; its brief recognized the absence of statutory authority in this regard, when it stated therein: “In its present form the Act does not contain a provision for payment of interest on taxes illegally or erroneously collected.”
It is our conclusion that plaintiff is not entitled to interest on the sums paid and to which it is entitled to judgment, without interest.
The judgment of the trial court as to the amount due the plaintiff is affirmed; the order of trial court refusing consideration of any costs therein incurred by plaintiff is reversed and the cause remanded for the trial court to allow and tax costs in conformity with the views herein expressed.